When will local and state authorities take action to protect Whatcom Counties land and water rights?

For any of you who have followed my conversations with Marlene Dawson, former Whatcom Count Council representative and pro-se for many litigants who are fighting to regain and retain their ability to use their property. I received this email from Marlene today and have published it here with Marlene’s approval. Because of Marlene’s efforts we have an obligation to hold our elected officials and government offices to fix this problem. Is it a hot potato? Yes, but ignoring a problem does not make it go away. The eventuality that this issue will have to be litigated in court is obvious and unless we demand that they do so, in defense of the tax paying residents of this County and State, the problem will continue to spin out of control to the detriment of our children and grandchildren.

Thank you for forwarding this article. I have a few comments in regards to this article. The author references the 2006 fee to trust study performed by the GAO. I have mentioned this research in a number of my emails. The study was requested by the Senate Committee of Indian Affairs. I have also mentioned that I have spoken with the GAO Director, Jeff Malcolm, who was involved in that study. In fact, I believe I have forwarded you and the council and others email correspondence from Mr. Malcolm. Mr. Malcolm affirmed in his email to me that “across the board,” meaning the 12 divisions with Area Directors, they found no consistent definition of what it means to approve or accept property in trust. Mr. Malcolm affirmed the process occurs at the end of the process, not early on. A former Secretary of Interior wrote in 1980 to the Bureau’s Area Director to explain that property is not in trust until it has completed the process. So, the issue of recording deeds before the process is completed is not new.

When this article mentions 100% acceptance by Interior for fee to trust, it is essential to understand that it is only acceptance for “review” which has met the 100% approval rate from the Pacific Division. The author seems not to be aware of the problem of recording deeds before the formal acceptance. The fact no formal, final approval has occurred can be supported by the Pacific regional land status reports from 1953 and 1985 (located at Interior’s library in D.C.) which I have already provided you and others emailed here. Those reports show very few lands have ever been “formally” accepted into trust for the entire Pacific region. The reason appears to be that the reservations have been allotted in severalty. The fact “no” lands have been “formally” accepted for the Lummis is further supported by my FOIA responses and a phone call wherein Interior personnel stated there were no tribal or members lands in trust. A phone call to certain Interior personnel, no longer employed, and a FOIA responses both support the lands within the Lummi reservation “land survey” are fee simple. Originally Interior wanted $4,600. for the FOIA information on the amount of fee simple lands held by the Lummi leadership and their members. On appeal, I got it down to $46.00

The author’s comments, on this fee to trust study by the GAO, can be found on page 202. The author implies that the Pacific Division has been properly following the fee to trust process. That statement is a completely “false” statement!!! In the Lummi Peninsula ground water suit, all documents were requested for production as it pertained to supporting evidence the property had been taken into trust. The most very basic requirements, such as a resolution by the tribal council supporting the placement of certain parcels into trust were missing. As it related to this basic missing requirement, a Lummi tribal person was asked during a deposition, “To what extent does the tribal council participate in fee to trust?” The answer was they didn’t. The tribal council member stated “all” actions were performed by their Lummi real estate division. The fee to trust documents requested were missing other very essential documents. Most important would be letters from Interior that would answer objections made by the assessor for fee to trust. If no communication addressing objections are provided to an objector, the Interior Board of Indian Appeals has affirmed that the fee to trust process must be started over. Also missing are the essential elements required for satisfaction of the Federal Justice Title Standards, such as an Alta Title Insurance policy.

Because a tribe must have “jurisdiction” over the lands, to have lands formally accepted into trust, is why a compact is now being required by Interior. I assume this means for their acceptance of its “review” or otherwise. Interior obviously doesn’t want local jurisdictions questioning a tribe’s authority or jurisdiction over the lands. The fact is, the authority for tribal jurisdiction is something that States and counties should be asking but seem to be avoiding. In no way should County Councils be signing a compact with an Indian group just because they believe that Interior will automatically accept the property into trust, which this author is suggesting. As explained, formal acceptance is not actually happening!! Signing a compact weakens the powers and authority of the State and County because it requires accepting jurisdiction that does not exist. If any County is inclined to enter such a compact, it should be on the condition that all Alta title policies for parcels going into trust be presented at the time it is known they have been formally accepted into trust.

Understand, the fact a tribe is federally recognized does not mean they have jurisdiction over the lands. Solicitor opinions have affirmed this fact! If any want to know how to locate those opinions let me know.

More on trust —are tidelands in trust?:

Some may recall a question I asked of a tribal council member deposed in the Lummi ground water suit. I stated that Interior land status reports showed no lands in trust. I asked, lacking any lands in trust, how was it possible for a federal water right to apply? The Lummi member responded by saying, “The tidelands are in trust and we can build wells in the tideland.” By that statement, the party was acknowledging the uplands were not in trust.

In regards to the tidelands, held within the original reservation “boundary” of both the Tulalips and Lummis, you will find that neither of these Indian groups has a deed for the tidelands. There is no “tribal” tidelands identified in their land status reports. This doesn’t mean that the lands are not held in trust. The fact is a trust relationship exists which has been supported by the courts, but it is NOT an exclusive trust. The question of “jurisdiction” over the tidelands has NEVER been addressed by any court. This includes the last federal case – the Milner case that evolved out of Sandy Point. You can ask Dick Stevens the attorney. He will tell you that jurisdiction was never addressed!

Now this is important, when reservation lands have been allotted in severalty, any restrictions on the Indian lands are “dropped” and the lands are exclusively under State jurisdiction. This was supported in a case out of Washington State – Goudy v. Meath 1906. I also have archive communication from Interior during that time period which affirms the same for “all” tribes allotted in severalty in Washington State. Some may say that the case still doesn’t address jurisdiction of the tidelands which are outside the reservation land survey. But understand, if no tribe has jurisdiction over the uplands, why would they have jurisdiction of the tidelands?

I have been told that my emails are too long. Consequently some may have missed this critical piece of information which I have previously shared on why the Secretary of Interior, not any tribe or the Bureau of Indian Affairs, would have jurisdiction of the tidelands. 25 CFR 169.1 (d &e) address the two types of trusts that benefit Indians. One type is managed by the Bureau of Indian Affairs and the tribes and the other type of trust is managed by the Secretary. Obviously the first type is where deeds would be issued. It is again this deed which would supports the tribe and the Bureau of Indian Affairs has jurisdiction. Lacking a trust deed being issued to a tribe, one should properly assume any identified trust property would be under the Secretary’s jurisdiction.

We know for a fact that not all trust properties, located within the “boundary” of a reservation, is managed by a tribe and the Bureau. School lands (held by the federal government in trust) are classic examples where a tribe would not have jurisdiction. Judge Zilly, in the ground water suit understood this and the Indian Board of Indian Appeals verified such lands, were under the Secretary’s jurisdiction. Tidelands would be another example where federal lands would be under the Secretary’s jurisdiction.

The federal district 1930 U.S. v. Stotts case affirmed the Lummi tidelands while in trust and within the boundary of the reservation, were in the public domain. This case also affirmed the tidelands were not part of the reservation “land survey.” Only lands within a “tribal” land survey and held in trust would be under tribal jurisdiction. This means the tidelands, while still benefiting the Indians, similar to the school lands, would NOT be exclusive to the tribe.

John Hedge, a white settler, was assigned a Donation Claim of 160 acres within the Lummi reservation. His land straddled the Nooksack River. We must ask ourselves, would it make sense for the President to allow lands to be allotted and sold under a treaty yet not permit the purchaser to have access to the fisheries or use of the tidelands when the lands are within their legal description or adjoin their property as an appurtenance? It doesn’t!

Secretarial Order #3206, issued by Clinton pertained to the Endangered Species Act. It affirmed that lands in the public domain or public lands were NOT tribal lands. Lands subject to allotment are recognized as public lands in solicitor opinions. If you look at the Point Elliott Treaty, there was no language of tribal exclusively for fisheries as it pertained to lands within the Lummi reservation. Judge Zilly, in the Lummi water suit, successfully pointed this out when the Lummis were going after a water right for fisheries. All findings were dismissed since the parties went into mediation.

I have mentioned before that Judge Bold’ts decision was not based on any facts but on false agreement statements established “before” going into that case, false agreement supported by our State attorneys. It is time the State corrected their errors and stop continuing to agree to same false agreements thereby avoiding litigation on jurisdiction. The Point Elliott Treaty groups, like our other treaty groups, never retained “exclusive” or aboriginal title to any lands. This is the false statement that our attorneys supported. When the lands were allotted, was when the federal government stopped treating the ceded reservations lands as aboriginal in nature.

Phone conversation with Mr. Speaks and suggested County Direction:

I had a phone conversation with Mr. Speaks last Friday. He indicated several weeks ago, after I contacted him by phone, that he wanted me to send supporting evidence for him and their solicitor to review. The information I was to send pertained to my assertion the Lummis held no tribal title to lands in trust and my desire that Interior contact the counties and help correct the record. I explained there was abuse of authority by these Indian groups and that it was creating and uneven economic field. I sent Mr. Speaks Interior’s 1985 land status report and made reference to my FOIA information. The bottom line, is that Mr. Speaks assured me that Interior would do NOTHING! In no way would Mr. Speaks admit that Lummi held no lands in trust. Basically, to shut down the discussion he said, the issue would have to be taken to court.

I might suggest that the Counties put Interior on the defense and force them to take the counties to court. In my view, the counties should start correcting their land data records to reflect and show all the lands fee simple lands, including those used for tribal government purposes. Our state attorneys gave poor advice when they supported giving tax exemptions on tribal lands in fee used for government purposes. Such an action recognize tribal powers even though no trust lands exist anywhere on the purported reservations. Putting the now tax exempt tribal “government” lands aside for the moment, to start the process, State and Counties could at least start collecting taxes on tribal casinos, gas stations, and other income producing lands as well as taxes from tribal members.

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